Ahmed v. Keisler ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAIKH ALI AHMED, 
Petitioner, No. 04-76246
v.
 Agency No.
A75-516-529
PETER D. KEISLER,* Acting
Attorney General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 13, 2007—Pasadena, California
Filed October 16, 2007
Before: Harry Pregerson and Johnnie B. Rawlinson,
Circuit Judges, and Brian E. Sandoval,** District Judge.
Opinion by Judge Pregerson;
Dissent by Judge Rawlinson
*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
zales, as Acting Attorney General of the United States, pursuant to Federal
Rule of Appellate Procedure 43(c)(2).
**The Honorable Brian E. Sandoval, United States District Judge for
the District of Nevada, sitting by designation.
14035
AHMED v. KEISLER 14039
COUNSEL
Shameem Hasan, Hasan & Samson, Los Angeles, California,
for the petitioner.
James E. Grimes, Office of Immigration Litigation, Washing-
ton, D.C., for the respondent.
OPINION
PREGERSON, Circuit Judge:
Petitioner Shaikh Ali Ahmed, a native of Bangladesh,
appeals the Board of Immigration Appeals’ (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) denial of his applica-
tion for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). We have jurisdic-
tion under 8 U.S.C. § 1252, and we grant the petition for
review.
14040 AHMED v. KEISLER
BACKGROUND
I. Factual Background
Petitioner Ahmed is a forty-eight-year-old native of Ban-
gladesh. He is a Bihari, born in East Pakistan before it became
Bangladesh. The Biharis sided with Pakistan against East
Pakistan in the War of Independence in 1971. The Biharis
consider themselves to be citizens of Pakistan and they hope
to someday return to Pakistan. Biharis speak Urdu, the lan-
guage of Pakistan, rather than Bengali, the language of Ban-
gladesh. Pakistan has admitted only a few thousand Biharis —
the remainder, approximately 250,000, live in Bangladesh.
After the Biharis’ refusal to accept Bengali citizenship, the
Bengali government removed them from their homes, confis-
cated their property and businesses, and relocated them to
squalid, overcrowded resettlement camps. Ahmed testified
that Biharis are virtual prisoners inside these camps; there is
not enough food to sustain them, they are not allowed to
work, and they do not have the right to travel within the coun-
try. Following the War of Independence, Ahmed lived in two
settlement camps before coming to this country. From 1972
to 1984, Ahmed lived in Kalishpur Camp. From 1984 to
1994, Ahmed lived in Geneva Camp.
A. Events in Kalishpur Camp
In 1972, Ahmed, his older brother, and uncle, were cap-
tured and detained by the Bengali army. The army suspected
Ahmed’s uncle of having collaborated with Pakistan. During
the detention, the army killed Ahmed’s uncle in front of
Ahmed. They also beat Ahmed and his brother. Ahmed’s
brother suffered a fractured hand and Ahmed has scars all
over his body from the beating.
AHMED v. KEISLER 14041
B. Events in Geneva Camp
1. Civil Disobedience
After moving to Geneva Camp, Ahmed became politically
active. He joined the Bihari organization Stranded Pakistani
General Repatriation Committee (“SPGRC”) in 1985, and
became an assistant to Nassin Khan, the SPGRC’s chief
leader. In 1990, Ahmed organized a hunger strike. During the
strike, the police arrived, took Ahmed into custody overnight,
beat him, and released him the next day.
In 1991, Ahmed participated in a demonstration in front of
the Pakistan Embassy. The demonstrators sat in a circle
around the embassy, and they tried to give the Ambassador a
memorandum requesting that he make arrangements to send
them to Pakistan. When they were not allowed to enter the
embassy, the demonstrators screamed and threw rocks. The
police were called, and they fired guns and threw tear gas at
the demonstrators. The demonstrators tried to run away but
they were caught by police. Many demonstrators, including
Ahmed, were beaten by the police. The police forced Ahmed
to sign a statement saying that he would not organize in the
future.
On December 26, 1994, Ahmed, together with the Bihari
community in Geneva camp, participated in a demonstration.
The community protested that they wanted to go to Pakistan
because they “cannot live with this kind of living.” The police
arrived and tried to break up the demonstration. At one point,
the demonstrators became angry with the police and started
throwing stones. The police called for backup and fired guns
and tear gas at the demonstrators. The police captured many
demonstrators, including Ahmed, took them into custody, and
beat them. The police released Ahmed the next day but threat-
ened him with death should he ever protest again. Ahmed tes-
tified that, “if I ever try to say anything like this or try to
speak then we will be killed in the police camp.” After he was
14042 AHMED v. KEISLER
released, Ahmed fled the camp, realizing that he was not safe
and that he needed to leave the country. After four visits to
the American Embassy, Ahmed succeeded in getting a visa.
There is no evidence that Ahmed was violent or that he advo-
cated violence at any of the three demonstrations.
2. Ahmed’s Brother
Like Ahmed, his brother was politically active within the
Bihari community. In 1993, the Awami League, a group
opposing the ruling Bengali party, kidnaped Ahmed’s brother.1
Members of the Awami League had tried to force Ahmed’s
brother to provide them with Biharis to participate in a dem-
onstration because they wanted to increase the number of dem-
onstrators.2 Ahmed’s brother told the Awami League that he
could not provide people for the rallies because the ruling
party would get angry with the Biharis. The Awami League
became increasingly angry with Ahmed’s brother. One night
they came to the camp with a truck and took Ahmed’s
brother. Ahmed never saw his brother again. Nassin Khan, the
head of the SPGRC, asked the police commissioner for infor-
mation about Ahmed’s brother, hoping to find his body or
where he had been killed. No information was ever given.
C. Events in the United States
Ahmed came to this country on November 10, 1995, on a
B-1 non-immigrant business visa with authorization to remain
until November 9, 1996. Ahmed remained in the United
States beyond this deadline and on April 15, 1998, he filed an
1
At the time Ahmed testified, the Awami League was the ruling party.
2
Ahmed testified that there are many political parties in Bangladesh,
and when they have rallies, the political groups try to “recruit” people —
like the Biharis — from different parts of Bangladesh to participate in the
rallies to swell the numbers. These groups threaten to cut off the Bihari’s
food if they do not send people to the rallies, but the opposing parties get
angry and threaten the Biharis if they do participate in the rallies.
AHMED v. KEISLER 14043
application for asylum and for withholding of removal. In his
application, Ahmed stated that he was stateless, that he had
been persecuted in Bangladesh, and that his life was in danger
because of his leadership role among Biharis.
II. Procedural History
A. Immigration Court
Following an interview with an asylum officer, the INS
issued Ahmed a Notice to Appear, charging him with remov-
ability as an alien who remained in the United States longer
than permitted. At a subsequent hearing on July 24, 1998,
Ahmed conceded his removability and stated his intention to
pursue asylum and withholding of removal. On October 5,
1998, an IJ issued an oral decision denying Ahmed’s asylum
and withholding of removal claims. The IJ stated that
Ahmed’s arrests at violent demonstrations did not constitute
persecution. The IJ found that Ahmed was assimilated, that he
was not stateless, and that he could live anywhere in Bangla-
desh because he speaks fluent Bengali. “Nobody would know
that he’s a Bihari unless he wants to let them know, since he’s
fluent in Bengali” and “nobody could tell by looking at him.”
The IJ concluded that Ahmed was a Bengali citizen.
Discussing the death of Ahmed’s uncle, the IJ stated that
Ahmed’s uncle was believed to be a spy “or at least he was
believed to be assisting the Pakistani army,” and “we don’t
know the specific reasons why he was killed.” The IJ recog-
nized that Ahmed and his brother were severely beaten in
connection with their uncle’s death. The IJ also found that
Ahmed’s brother’s kidnaping resulted from an argument with
the Awami League and did not constitute persecution because
the kidnaping was not an act supported by the government.
Finding that Ahmed had not suffered past persecution and
had no well-founded fear of future persecution, the IJ denied
Ahmed asylum and withholding of removal. The IJ found
14044 AHMED v. KEISLER
Ahmed credible and had “no reason to believe . . . that he’s
undeserving of relief as a matter of discretion.” However,
finding that there were no “factors of a discretionary nature,”
he granted Ahmed sixty days to voluntarily depart — the
maximum allowable period.
On June 14, 1999, Ahmed filed a motion to remand the
case to an IJ so that Ahmed could apply for relief under the
Convention Against Torture (“CAT”).3 The BIA granted
Ahmed’s motion on April 15, 2002. Hearings on remand were
held on February 21, 2002, and August 4, 2003.4 On August
4, 2003, a new IJ issued a decision regarding Ahmed’s asy-
lum, withholding of removal, and newly-added CAT claim.
The IJ adopted the prior IJ’s finding that Ahmed was not enti-
tled to asylum relief or withholding of removal. The IJ denied
Ahmed’s CAT claim, finding that Ahmed failed to demon-
strate that he would be tortured if returned to Bangladesh. The
IJ found Ahmed to be credible and eligible for voluntary
departure. Ahmed timely appealed to the BIA.
B. BIA
On November 4, 2004, the BIA issued a brief per curiam
order affirming the IJ’s finding that Ahmed “failed to meet his
burden of establishing past persecution or a well-founded fear
of persecution on account of one of the statutorily protected
grounds, or that it is more likely than not that he will be perse-
cuted or subjected to torture upon his return to Bangladesh.”
3
Regulations implementing CAT were not promulgated until February
1999. See Regulations Concerning the Convention Against Torture, 64
Fed. Reg. 8478 (Feb. 19, 1999). Under these regulations, aliens like
Ahmed who were ordered removed before March 22, 1999, could move
to reopen for the sole purpose of seeking CAT relief. See 8 C.F.R.
§ 208.18(b)(2) (2000).
4
IJ Lawrence Burman issued the original decision in Ahmed’s case. On
remand, the case was heard by IJ Ira Bank because IJ Burman had been
reassigned to a different immigration court.
AHMED v. KEISLER 14045
The BIA then dismissed Ahmed’s appeal. Ahmed timely
appealed to this court.
DISCUSSION
I. Standard of Review
Although the BIA’s opinion did not expressly state whether
it conducted a de novo review, its phrasing suggests that it
conducted an independent review of the record. If that were
the case, we would review the BIA’s decision. See Avetova-
Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000) (citing
Vongsakdy v. INS, 171 F.3d 1203, 1206 (9th Cir. 1999)). But
the lack of analysis that the BIA opinion devoted to the issue
at hand — its simple statement of a conclusion — also sug-
gests that the BIA gave significant weight to the IJ’s findings.
See id. In light of that ambiguity, we also look to the IJ’s oral
decision as a guide to what lay behind the BIA’s conclusion.
See id.
We review for substantial evidence the decision that an
applicant has not established eligibility for asylum. See
Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004). We
will uphold the BIA’s asylum determination if it is “supported
by reasonable, substantial, and probative evidence on the
record considered as a whole.” Knezevic v. Ashcroft, 367 F.3d
1206, 1210-11 (9th Cir. 2004). Similarly, we review for sub-
stantial evidence the factual findings underlying the BIA’s
determination that Ahmed did not qualify for withholding of
removal, see Zehatye v. Gonzales, 453 F.3d 1182, 1184-85
(9th Cir. 2006), and the BIA’s finding that Ahmed is not eligi-
ble for protection under the Convention Against Torture, see
Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).
14046 AHMED v. KEISLER
II. Asylum
A. Applicable Legal Standard
To be eligible for asylum, Ahmed must establish that he is
a refugee — namely, that he is unable or unwilling to return
to Bangladesh “because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.”5
Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004); 8 U.S.C.
§ 1101(a)(42)(A). The source of the persecution must be the
government or forces that the government is unwilling or
unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112,
1119 (9th Cir. 2004).
To be “well-founded,” an asylum applicant’s “fear of per-
secution must be both subjectively genuine and objectively
reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies
the subjective component by credibly testifying that [he] gen-
uinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184
F.3d 1029, 1035 (9th Cir. 1999)). “The objective component
can be established in two different ways.” Duarte de Guinac
v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999).
5
The fact that Petitioner is Bihari and consequently claims to be “state-
less” does not, absent other factors, warrant a grant of asylum, as the Act
explicitly contemplates asylum applicants with “no nationality.” 8 U.S.C.
§ 1101(a)(42)(A); see also Amin v. Ashcroft, 388 F.3d 648, 651 (8th Cir.
2004) (noting that “statelessness . . . would not by itself be evidence of
past persecution”). Such applicants are evaluated by referring to their
country of last habitual residence. See 8 U.S.C. § 1101(a)(42)(A). Like
other asylum applicants, Ahmed must demonstrate that he is “unable or
unwilling to return to . . . that country because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.” Id.; see also
Faddoul v. INS, 37 F.3d 185, 190 (5th Cir. 1994) (holding that “stateless
individuals must demonstrate the same well-founded fear of persecution
as those with nationalities”).
AHMED v. KEISLER 14047
One way to satisfy the objective component is to
prove persecution in the past, giving rise to a rebutta-
ble presumption that a well-founded fear of future
persecution exists. The second way is to show a
good reason to fear future persecution by adducing
credible, direct, and specific evidence in the record
of facts that would support a reasonable fear of per-
secution.
Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (internal quo-
tations and citations omitted). While a well-founded fear must
be objectively reasonable, it “does not require certainty of
persecution or even a probability of persecution.” Hoxha v.
Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003). “Even a ten
percent chance that the applicant will be persecuted in the
future is enough to establish a well-founded fear.” Sael, 386
F.3d at 925 (quoting Knezevic, 367 F.3d at 1212. We look at
the totality of the circumstances in deciding whether a finding
of persecution is compelled. See Korablina v. INS, 158 F.3d
1038, 1044 (9th Cir. 1998) (“The key question is whether,
looking at the cumulative effect of all the incidents a peti-
tioner has suffered, the treatment [he or] she received rises to
the level of persecution.”).
Because Ahmed testified credibly, he has satisfied the sub-
jective component. See Sael, 386 F.3d at 924. Therefore, to
demonstrate that he is eligible for asylum, he must satisfy the
objective component by demonstrating past persecution or a
well-founded fear of future persecution. See Ladha, 215 F.3d
at 897.
B. Analysis
1. Past Persecution - Political Opinion
[1] Ahmed contends that he suffered persecution in Bangla-
desh on account of his political opinion. To demonstrate past
persecution on account of a political opinion, Ahmed must
14048 AHMED v. KEISLER
satisfy two requirements. First he must show that he held (or
that his persecutors believed that he held) a political opinion.
See Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000). Second,
he must show that his persecutors persecuted him because of
his political opinion. See id.
A political opinion encompasses more than electoral poli-
tics or formal political ideology or action. See e.g. Al-Saher
v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (recognizing that
an applicant’s statements regarding the unfair distribution of
food in Iraq resulted in the imputation of an anti-government
political opinion), amended by 355 F.3d 1140 (9th Cir. 2004).
A political opinion can be an actual opinion held by the appli-
cant, or an opinion imputed to him or her by the persecutor.
See Sangha v. INS, 103 F.3d 1482, 1488-89 (9th Cir. 1997).
We find that substantial evidence does not support the IJ’s
finding that Ahmed failed to demonstrate past persecution.
For the reasons set forth below, we hold that the record com-
pels the finding that Ahmed was targeted and persecuted on
account of his political opinion.
a. Ahmed Raises a Claim for Persecution on Account
of His Political Opinion
As an initial matter, the Government contends that Ahmed
cannot assert that he was persecuted on account of his politi-
cal opinion because Ahmed “disclaimed any political opinion
other than a desire to move to Pakistan, and presented no evi-
dence of political persecution.” To support this assertion, the
Government refers to Ahmed’s testimony where the following
exchange took place:
IJ: Okay. And, what is the political opin-
ion that you were trying to express in
the rallies and in the demonstrations
in ‘91 and ‘93?
AHMED v. KEISLER 14049
Ahmed: We do not have any political opinion
for Bangladesh. Our only main pro-
test was to send us to Pakistan. We,
we cannot live this kind of living. We
cannot live in this way, and we just
want some kind of arrangement to be
made by which we can be sent to
Pakistan.
In a similar vein, the IJ, in his oral decision, stated, “In fact,
there is no political opinion the Biharis have that’s not shared
by the Bengali government. The Biharis want to leave and the
Bengalis want them to leave.”
[2] To suggest that either of these statements demonstrates
that Ahmed does not have a political opinion is disingenuous.
Ahmed has a definite political opinion — he believes that the
Biharis are treated very poorly in Bangladesh and he wishes
to leave Bangladesh for Pakistan. Ahmed’s testimony may
have inartfully stated his position, but we do not think that it
can be interpreted as disavowing his claims that the govern-
ment and police “are trying to oppress us . . . when we try to
say something.” Rather, it is because Ahmed makes no secret
of his beliefs and because he is an outspoken organizer and
leader of Biharis in refugee camps that he was beaten,
detained, and threatened. Thus, we reject the Government’s
assertion that Ahmed does not raise a claim for past persecu-
tion on account of his political opinion.
b. Ahmed’s Civil Disobedience
There is no dispute that Ahmed was beaten and jailed by
the army and the police because of his participation in a hun-
ger strike and two political demonstrations. Ahmed was a
political organizer and leader in the SPGRC, and he did not
keep his political views a secret. Despite these facts, the IJ
found that Ahmed had not suffered past persecution.
14050 AHMED v. KEISLER
His arrests at these violent demonstrations . . . is not
persecution. The fact that the police beat the people
that they had taken in custody is more of a reflection
on police tactics in countries such as Bangladesh
than it is any indication that he had any political
opinion they wished to overcome, or any hatred they
had toward the Biharis.
[3] There is no evidence in the record to suggest that
Ahmed was violent at the protests or that he advocated vio-
lence. Ahmed testified that the protests began peacefully but
became violent later on. He testified that the police beat him
up for participating in a hunger strike; however, there is no
evidence that Ahmed was violent during the strike. Ahmed
testified that while demonstrating in front of the Pakistani
embassy in 1991, “we circled it and we sat there,” and “[we]
tried to give the Ambassador . . . a memorandum.” Although
Ahmed testified that “stones were thrown towards the embas-
sy,” there is no evidence that Ahmed threw rocks at the
embassy, that he was violent, or that he advocated violence.
Testifying about the third demonstration, Ahmed stated that
he and the rest of the Bihari community, “all got together
there, and we were having speeches and trying to see what we
can do. We were swearing, and we were taking an oath what
we are going to do,” when the police came and removed the
microphones.6 Again, there is no evidence that Ahmed was
violent at the demonstration or that he advocated violence.
Ahmed testified that he told the police, “If you don’t give us
the freedom to speak today, then this very Bangladesh is
going to become Pakistan again.”7 That was clearly a political
6
The Government states that the protest involved “profanity,” to under-
score its assertion that the demonstration was violent before the police
arrived. We believe it is a stretch to suggest that Ahmed’s statement that
the protestors were “swearing” and “taking oaths,” constitutes “a large
profanity-laced meeting.” In any event, such language does not indicate
when the violence began.
7
The Government suggests that this statement caused the police to fire
shots and tear gas on the demonstrators and that “[u]ndoubtedly, the police
AHMED v. KEISLER 14051
statement, and after it was made, the police beat up Ahmed
and other demonstrators and told Ahmed that he would be
killed if he ever tried to organize or speak up again.
Ahmed testified, “they are trying to oppress us . . . when
we try to say something,” and as a result of his involvement
with the demonstrations, he was beaten, detained, and threat-
ened. With respect to all three demonstrations, there is no evi-
dence in the record to suggest that Ahmed was violent,
advocated violence, or did anything other than make political
statements.
[4] Physical harm has consistently been treated as persecu-
tion. See Duarte de Guinac, 179 F.3d at 1161. Where an asy-
lum applicant suffers such harm on more than one occasion,
and, as in this case, is victimized at different times over a
period of years, the cumulative effect of the harms is severe
enough that no reasonable fact-finder could conclude that it
did not rise to the level of persecution. See Chand v. INS, 222,
F.3d 1066, 1074 (9th Cir. 2000); Korablina, 158 F.3d at 1044
(noting the cumulative effect of several instances of violence
and harassment compel finding of persecution). Ahmed was
the victim of violence on three occasions, on all of which he
was beaten by the police or army. Here, the detentions, beat-
ings, and threats that Ahmed was subjected to are dispropor-
tionate to Ahmed’s activities.
Therefore, we find that Ahmed’s suffering rises to the level
of persecution. See Fedunyak v. Gonzales, 477 F.3d 1126,
did not take Ahmed’s threat to overthrow the government lightly.” The
dissent agrees, saying that after his “not-so-veiled threat . . . it is not
suprising that the police moved to restore order.” Dissent at 14067. There
is no evidence, however, that it was Ahmed’s statement that prompted the
police to fire shots or tear gas on the protestors. Further, given that Ahmed
was clearly not in a position to overthrow the government and there is no
evidence that Ahmed was armed, we question whether the police could be
so concerned by Ahmed’s statement that they were compelled to resort to
violence.
14052 AHMED v. KEISLER
1129 (9th Cir. 2007) (finding that beatings, and death threats
made after petitioner voiced political opinion rose to the level
of persecution); Guo v. Ashcroft, 361 F.3d 1194, 1197, 1203
(9th Cir. 2004) (finding that two arrests and repeated beatings
constituted persecution); Mamouzian v. Ashcroft, 320 F.3d
1129, 1134 (9th Cir. 2004) (recognizing that repeated physical
abuse combined with detention and threats constituted perse-
cution); Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000)
(holding that politically active petitioner who had been
arrested and tortured suffered persecution).
[5] Because Ahmed holds a political belief and he was per-
secuted for voicing his opinion, we find that Ahmed suffered
persecution on account of a political opinion. See Navas, 217
F.3d at 656. Therefore, we find that the IJ’s finding that
Ahmed did not suffer past persecution on account of his
involvement with “violent” protests is not supported by sub-
stantial evidence.8
c. Ahmed and His Uncle
[6] Ahmed’s uncle was captured by the government and
killed in 1972.9 The IJ found that the uncle may have been
8
The dissent argues that “the officers efforts to quell these riots did not
constitute persecution, but an attempt to maintain the peace.” Dissent at
14066. The record reflects the fact that the Biharis were completely peace-
ful during the first hunger strike in 1990, for which Ahmed was detained
and beaten. It also reflects that during the 1994 demonstration, the police
came to disrupt the demonstrations, which caused the violence to break
out. This practice is confirmed by the Country Report for Bangladesh,
which indicates that police corruption and abuse in Bangladesh are ram-
pant and the police “frequently beat demonstrators.”
9
The dissent suggests that the proximity of his uncle’s death to the 1971
war between West Pakistan and East Pakistan mitigates against a finding
of persecution. Dissent at 14065 (arguing that “we have consistently held
that confrontations, even deadly ones, that occur in the course of civil war
or insurgency, are, unfortunately, expected consequences of civil conflict
rather than persecution.”) We disagree. Ahmed’s uncle’s killing was not
AHMED v. KEISLER 14053
involved in espionage and therefore the government would
have a legitimate interest in prosecuting him. However, the
circumstances surrounding the uncle’s death suggest that his
death was politically motivated and not the product of legiti-
mate prosecution.
Ordinary prosecution for criminal activity is generally not
a ground for relief. See Chanco v. INS, 82 F.3d 298, 301 (9th
Cir. 1996). However, as mentioned earlier, if the prosecution
is motivated by a protected ground, and the punishment is suf-
ficiently serious or disproportionate, the sanctions imposed
can amount to persecution. See Bandari v. INS, 227 F.3d
1160, 1168 (9th Cir. 2000). Here, the army sought Ahmed’s
uncle because of his political opinion — he opposed the cre-
ation of an independent Bangladesh. The army also suspected
Ahmed and his older brother, and all three were beaten. But
regardless of Ahmed’s beliefs at the time, the fact that Ahmed
was beaten when captured with his uncle suggests that the
army imputed to Ahmed his uncle’s political opinion.10 See
Sangha, 103 F.3d at 1488-89.
during the course of a civil war, as the war ended in December 1971 and
he was killed in 1972. Further, even though generalized violence as a
result of civil strife does not necessarily qualify as persecution, neither
does civil strife eliminate the possibility of persecution. See Ndom v. Ash-
croft, 384 F.3d 743, 752 (9th Cir. 2004) (“At the same time, the existence
of civil strife does not alter our normal approach to determining refugee
status or make a particular asylum claim less compelling.”). The relevant
analysis is still whether the persecutor was motivated by one of five statu-
tory grounds. Because Ahmed’s uncle was beaten and killed after the war
because of his suspected ties to an opposition group, we do not think it
was merely the expected consequences of civil conflict.
10
The dissent suggests that Ahmed was beaten because he tried to save
his uncle’s life, not because of Ahmed’s political opinion. Though Ahmed
did testify that he tried to stop the army from beating his uncle, he also
testified that “they were suspicious about [his uncle], they were suspecting
him of [collaborating with Pakistan] so along with him we, both brothers,
were also taken.” Based on this testimony, it is not reasonable to conclude
that Ahmed’s detention was not on account of his imputed political opin-
ion. Further, this incident clearly would never have happened except for
his family’s political opinion. The fact that Ahmed attempted to stop his
uncle from being killed does not change this fact.
14054 AHMED v. KEISLER
[7] It seems rather unlikely that Ahmed’s uncle, a Bihari
refugee, would have the means or opportunity to “collabo-
rate” with Pakistan. Nonetheless, Ahmed’s uncle was killed in
front of Ahmed — without a trial or any other form of due
process — and Ahmed and his brother were beaten when they
tried to prevent their uncle’s death. The Country Report for
Bangladesh states that police corruption and abuse is rampant.
The Government frequently uses the police for polit-
ical purposes. There is widespread police corruption
and lack of discipline. Police officers committed
numerous serious human rights abuses and were sel-
dom disciplined, even for the most egregious
actions.
. . . Police committed a number of extrajudicial kill-
ings, and some persons died in police custody under
suspicious circumstances. Police routinely used tor-
ture, beatings, and other forms of abuse while inter-
rogating suspects. . . . The Government rarely
punishes persons responsible for torture or unlawful
deaths.
Thus, even if Ahmed’s uncle had collaborated with the Paki-
stanis, the facts that Ahmed’s uncle was killed and Ahmed
and his brother were severely beaten by the army suggest per-
secution on account of a political opinion. See Navas, 217
F.3d at 656.
[8] That Ahmed was beaten absent any due process also
supports his claim of persecution on account of a political
opinion. See Miranda Alvarado v. Gonzales, 449 F.3d 915,
930-31 (9th Cir. 2006) (“We have repeatedly held that perse-
cution in the absence of any legitimate criminal prosecution,
conducted at least in part on account of political opinion con-
stitutes persecution on account of political opinion, even if the
persecution served intelligence-gathering purposes.”) (internal
citation omitted); Ndom v. Ashcroft, 384 F.3d 743, 755 (9th
Cir. 2004) (“[E]ven if the government authorities’ motivation
AHMED v. KEISLER 14055
for detaining and mistreating [an applicant] was partially for
reasons of security, persecution in the absence of any legiti-
mate criminal prosecution, conducted at least in part on
account of political opinion, provides a proper basis for asy-
lum and withholding of deportation, even if the persecution
served intelligence gathering purposes.”) (internal quotations
and alternations omitted); Navas, 217 F.3d at 660 (“If there is
no evidence of a legitimate prosecutorial purpose for a gov-
ernment’s harassment of a person . . . there arises a presump-
tion that the motive for harassment is political.”).
[9] In sum, the facts that Ahmed was beaten because of his
political opinion, or an opinion imputed to him, and that he
was abused by the police absent any due process protections,
support his contention that he suffered past persecution. See
Navas, 217 F.3d at 656; Sangha, 103 F.3d at 1488-89. Fur-
ther, that Ahmed’s uncle was captured and killed by the gov-
ernment provides further support to Ahmed’s claim of past
persecution. See Baballah v. Ashcroft, 367 F.3d 1067, 1074-
75 (9th Cir. 2004) (“Violence directed against an applicant’s
family members provides support for a claim of persecution
and in some instances is sufficient to establish persecution
because such evidence may well show that [an applicant’s]
fear . . . of persecution is well founded.”) (internal quotation
and citation omitted). Thus, we find that this event supports
Ahmed’s asylum claim.
d. Ahmed’s Brother
Like Ahmed, his brother was politically active and an orga-
nizer in the Bihari community. He was kidnaped by members
of the Awami League because he refused to provide Bihari
supporters to attend the Awami League’s opposition rallies.
Ahmed’s brother did not want to provide supporters because
the government would withhold food from the camp.
Ahmed’s brother’s refusal to cooperate with the Awami
League was based, at least in part, on a political opinion (i.e.,
the brother did not want to anger the government and possibly
14056 AHMED v. KEISLER
lose food for the camp.) Ahmed’s brother took a political
position opposing the Awami League, and he was kidnaped
(and presumably killed) as a result. There is no evidence that
the perpetrators were ever prosecuted by the Bangladesh gov-
ernment.
[10] The IJ found that these events do not constitute perse-
cution because the perpetrators were the Awami League, not
the Government, and “one can’t think of any reason why the
government would want to assist an opposition party recruit
additional people for their opposition rallies.” However,
Ahmed is not required to show persecution from the govern-
ment; acts of harassment or violence perpetrated by an entity
that the government fails to control can constitute evidence of
persecution. See Korablina, 158 F.3d at 1044. There is no dis-
pute that Ahmed’s brother was kidnaped by the Awami
League.11 The record suggests that Bangladesh’s government
does not administer the camps, and there is no control over
who goes into and out of the camps. The government’s
unwillingness or inability to control the actions of private par-
ties — namely, the Awami League — inside or near the
camps, supports Ahmed’s asylum claim. See Singh v. INS, 94
F.3d 1353, 1359 (9th Cir. 1996) (noting that government inac-
tion in the face of persecution by private groups that the gov-
ernment is unwilling or unable to control may support a claim
for asylum). Further, we find the fact that Ahmed’s brother
11
The dissent adopts the IJ’s assertion that Ahmed’s brother was kid-
naped and killed because the Awami League got angry with him, not
because of his political opinion. Ahmed did testify that his brother got in
an argument with the Awami League representatives. This does not, how-
ever, undercut Ahmed’s contention that his brother was taken because his
brother refused to provide Bihari people for the Awami League demon-
stration. The two explanations for the kidnaping are not mutually exclu-
sive. The record reflects that the Awami League was angry at Ahmed’s
brother because he would not organize Biharis to participate in their politi-
cal rally. Regardless of whether they became angry with him before they
kidnaped him, the reason he was kidnaped was that he stood up to the
Awami League and refused to support them.
AHMED v. KEISLER 14057
was captured and presumably killed by the Awami League
provides additional support for Ahmed’s claim of past perse-
cution. See Baballah, 367 F.3d at 1074-75 (recognizing that
violence directed against an applicant’s family members pro-
vides support for a claim of persecution).
2. Future Persecution
a. Political Opinion
To demonstrate a fear of future persecution on account of
a political opinion, an asylum applicant must show (1) that he
holds a political opinion; (2) that his political opinion is
known to his persecutors; and (3) that the persecution will be
on account of his political opinion. See Gonzales-Neyra, 122
F.3d at 1296. A ten percent chance that an applicant will be
persecuted in the future is enough to establish a well-founded
fear of future persecution. See Sael, 386 F.3d at 925.
[11] However, proof of past persecution gives rise to a pre-
sumption of a well-founded fear of future persecution and
shifts the evidentiary burden to the government to rebut that
presumption.12 See, e.g. Popova v. INS, 273 F.3d 1251, 1259
(9th Cir. 2001); see also 8 C.F.R. § 208.13(b)(1)(i). The pre-
sumption can be rebutted with a showing:
(1) that there has been a fundamental change in cir-
cumstances such that the applicant no longer has a
12
Even if Ahmed did not establish past persecution, he satisfies the
lower ten percent standard for showing that he has a well-founded fear of
future persecution. See Sael, 386 F.3d at 935. First, Ahmed holds a politi-
cal opinion. Second, he was persecuted (arrested, beaten, and threatened
with death) by the army and police because of his political opinion.
Finally, the police told him that they will kill him should he participate in
another protest, and Ahmed’s uncle and brother were kidnaped and/or
killed because of their political opinions. Thus, Ahmed has satisfied the
three requirements to demonstrate a well-founded fear of future persecu-
tion. See Gonzales-Neyra, 122 F.3d at 1296.
14058 AHMED v. KEISLER
well-founded fear of persecution in Bangladesh on
account of his political opinion; or (2) that petitioner
can avoid future persecution by relocating to another
part Bangladesh and, under all the circumstances, it
would be reasonable to expect the applicant to do so.
See 8 C.F.R. § 208.13(b)(1).
[12] In this case, the Government failed to show a change
in country conditions that would overcome the presumption.
The Bangladesh Country Report contains numerous refer-
ences to police abuses and the government’s inability, or
unwillingness, to crack down on these abuses or punish the
perpetrators. Nor has the Government shown that life in the
Bihari camps has improved. In addition, it is not reasonable
to expect that Ahmed would be able to relocate to another part
of Bangladesh. Although, as the IJ noted, Ahmed does speak
Bengali and that “nobody could tell by looking at him” that
Ahmed was a Bihari, nothing suggests that Ahmed could
legally live in another part of Bangladesh. Bahiris were forced
to give up their property in the early 1970s and are not
allowed to hold jobs. Ahmed could only exist outside of the
camp if he pretended not to be a Bihari. The IJ also “found”
that Ahmed is a citizen of Bangladesh. However, there is no
evidence to support this finding; it is conjecture and “cannot
substitute for substantial evidence.” Karouni, 399 F.3d at
1177.
[13] Finally, Ahmed is a leader in the Bihari community
and an outspoken member of the SPGRC who is committed
to participating in dissident activities if forced to return to
Bangladesh. The INA does not require Ahmed to change “an
innate characteristic . . . so fundamental,” Hernandez-Montiel
v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000), or to relinquish
such an “integral part of [his] human freedom,” Lawrence v.
Texas, 539 U.S. 558, 577 (2003). Because Ahmed’s fear of
persecution is based, in part, on his status as a politically
active Bihari, and he cannot be required to suppress his politi-
AHMED v. KEISLER 14059
cal interests and activities, it is unreasonable to expect that
Ahmed would be able to secretly live elsewhere in Bangla-
desh. See Karouni, 399 F.3d at 1173.
[14] For these reasons, we find that Ahmed has a well-
founded and unrebutted fear of future persecution on account
of his political opinion.
b. Social Group
Ahmed also contends that he has a well-founded fear of
future persecution in Bangladesh because he is a Bihari. “[A]
‘particular social group’ is one united by a voluntary associa-
tion, including a former association, or by an innate character-
istic that is so fundamental to the identities or consciences of
its members that members either cannot or should not be
required to change it.” Karouni, 299 F.3d at 1171 (quoting
Hernandez-Montiel, 225 F.3d at 1093). The IJ found that
Ahmed is part of a definite social group.
This group is defined as Bihari, and I do find that
they are a particular social group. In fact, I don’t
think that there’s much doubt about that. The Biharis
have wished nothing other than to go to Pakistan, the
problem is that Pakistan actually doesn’t want them.
[15] Ahmed can demonstrate a well-founded fear of future
persecution on account of his social group by showing that
“he is a member of a ‘disfavored group’ coupled with a show-
ing that he, in particular, is likely to be targeted as a member
of that group.” Sael, 386 F.3d at 925 (quoting Mgoian v. INS,
184 F.3d 1029, 1035, n.4 (9th Cir. 1999)); see also Kotasz, 31
F.3d at 853. The requirements that an alien be a member of
a “disfavored group” and that he faces an individualized risk
of being singled out for persecution, work together. See Sael,
386 F.3d at 925.
[16] It appears that Biharis are a disfavored group in Ban-
gladesh. They are required by the government to live in
14060 AHMED v. KEISLER
squalid refugee camps with no electricity, no sanitation, and
little food. Although these substandard living conditions may
be common throughout Bangladesh, it is significant that the
government withholds food from Biharis if they support
opposition political rallies. Ahmed testified that Bihari land,
property, and businesses were confiscated, and Biharis were
removed from their homes in the early 1970s. Ahmed also
testified that the government refused to allow Ahmed and
other Biharis to leave the country to travel to Korea to work
as laborers. Thus, it appears that Biharis face ill treatment by
the government due simply to their status as Biharis. See Bal-
labah, 367 F.3d at 1076 (finding that substantial economic
deprivation that constitutes a threat to life or freedom may
constitute persecution); Tawadras v. Ashcroft, 364 F.3d 1099,
1106 (9th Cir. 2004).
[17] With respect to the second requirement, Ahmed was
beaten, detained, and threatened because he is a leader and
organizer in the SPGRC. Ahmed testified that if he is forced
to return to Bangladesh, he will continue to be a dissident and
represent the Biharis. As mentioned earlier, asylum seekers
are not required to change immutable characteristics or to
abandon their beliefs simply to avoid future persecution. See
Karouni, 399 F.3d at 1173. Consequently, Ahmed will be
more likely to be singled out for persecution than other Biha-
ris. Because Ahmed has shown that he is part of a “disfavored
group” and that he is “likely to be targeted as a member of
that group,” we find that Ahmed has demonstrated a well-
founded fear of future persecution on account of his social
group. Sael, 386 F.3d at 925.
Conclusion
[18] Because Ahmed credibly testified that he suffered past
persecution on account of his political opinion and social
group, and because there is more than a ten percent chance
that if returned to Bangladesh he will suffer future persecution
on account of his political opinion or social group, we find
AHMED v. KEISLER 14061
that Ahmed is statutorily eligible for asylum. Reversal of the
IJ’s denial of Ahmed’s asylum application is warranted
because “the evidence would compel any reasonable fact-
finder to conclude that the requisite fear of persecution has
been shown.” Navas, 217 F.3d at 657; see also Kahssai v.
INS, 16 F.3d 323, 329 (9th Cir. 1994).
III. Withholding of Deportation
A. Applicable Legal Standard
An applicant is entitled to withholding of deportation if he
or she can establish a “clear probability,” INS v. Cardoza-
Fonseca, 480 U.S. 421, 430 (1987), that his “life or freedom
would be threatened” upon return because of his “race, reli-
gion, nationality, membership in a particular social group, or
political opinion,” 8 U.S.C. § 1231(b)(3)(A). This “clear
probability” standard, interpreted as meaning “more likely
than not,” is more stringent than asylum’s “well-founded
fear” standard because withholding of deportation is a manda-
tory form of relief. Navas, 217 F.3d at 655. “Unlike asylum,
withholding of removal is not discretionary. The Attorney
General is not permitted to deport an alien to a country where
his life or freedom would be threatened on account of” one of
the protected grounds. Al-Harbi v. INS, 242 F.3d 882, 888
(9th Cir. 2001).
Past persecution generates a presumption of eligibility for
withholding of removal. See Ballabah, 367 F.3d at 1079;
Kataria v. INS, 232 f.3d 1107, 1115 (9th Cir. 2000). Because
Ahmed has established that he suffered past persecution, the
Government must show, by a preponderance of evidence, that
country conditions have so changed that it is no longer more
likely than not that Ahmed would be persecuted should he be
forced to return, or that he reasonably could be expected to
relocate to another part of Bangladesh to avoid future threats
to life or freedom. See 8 C.F.R. § 208.16(b)(2); Navas, 217
F.3d at 657.
14062 AHMED v. KEISLER
B. Analysis
We find that Ahmed’s testimony not only “compel[s] any
reasonable factfinder to conclude” that he faces at least a ten
percent chance of future persecution, but also establishes that
it is “more likely than not” that he faces a “clear probability”
of persecution if removed. Navas, 217 F.3d at 655, 657. The
Government has not shown a fundamental change in circum-
stances. Ahmed is a leader in the Bihari community and an
outspoken member of the SPGRC who is committed to partic-
ipating in dissident activities. He cannot be forced to suppress
his political interests and activities, see Karouni, 399 F.3d at
1173, and if forced to return to Bangladesh, he will continue
to organize and participate in demonstrations, despite the
police death threat. Therefore, it is more likely than not that
if forced to return to Bangladesh, Ahmed will be persecuted
by the police or the government. Further, as discussed above,
it is unreasonable to expect that Ahmed can relocate within
Bangladesh to avoid future threats. It is unreasonable to
expect that Ahmed would be able to live elsewhere in Bangla-
desh because Biharis cannot own property and are forced to
live in camps. Nor is it reasonable to expect Ahmed to live in
total secret outside of the camps and away from his friends
and remaining family.
[19] Having shown an unrebutted presumption of entitle-
ment to withholding of removal, we hold that the IJ’s finding
that Ahmed was not entitled to withholding of removal is not
supported by substantial evidence. See Zehatye, 453 F.3d at
1184-85.
IV. CAT Relief
Ahmed contends that he is entitled to relief under CAT. To
qualify for CAT relief, Ahmed must establish that it is more
likely than not that he would be tortured if removed to Ban-
gladesh. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
2004). “ ‘Torture is an extreme form of cruel and inhuman
AHMED v. KEISLER 14063
treatment and does not include lesser forms of cruel, inhuman
or degrading treatment or punishment that do not amount to
torture.’ ” Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.
2001) (quoting 8 C.F.R. § 208.18(a)(2)), amended by, 355
F.3d 1140 (9th Cir. 2004). Torture is defined as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her
or a third person information or a confession, pun-
ishing him or her for an act he or she or a third per-
son has committed or is suspected of having
committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimi-
nation of any kind . . . .
Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001) (quot-
ing 8 C.F.R. § 208.18(a)(1) (2000)). Country conditions evi-
dence can play a decisive role in determining eligibility for
relief under CAT. See id. at 1282-83. Ahmed bears the burden
of presenting evidence to establish “substantial grounds for
believing that [he] would be in danger of being subjected to
torture in the country of removal.” Id. at 1284 (internal quota-
tion marks omitted). We review the factual findings underly-
ing the IJ’s denial of relief under the CAT for substantial
evidence. See Zheng, 332 F.3d at 1193.
[20] The evidence in the record compels a finding that it is
more likely than not that Ahmed will be persecuted if
returned to Bangladesh, and Ahmed has offered evidence, if
less pronounced, suggesting the likelihood of future harm.
While in Bangladesh, Ahmed was taken into custody and
beaten on four occasions (once while with his brother and
uncle, and three times after participating in protests). Though
certainly forms of persecution, it is not clear that these actions
would rise to the level of torture.
[21] Because the evidence does not demonstrate that it is
more likely than not that Ahmed will be tortured if returned
14064 AHMED v. KEISLER
to Bangladesh, we find that CAT relief is not appropriate. See
Hasan v. Ashcroft, 380 F.3d 1114, 1120-23 (9th Cir. 2004);
8 C.F.R. § 208.16(c)(2). Accordingly, we find that substantial
evidence supports the IJ’s determination that Ahmed is not
eligible for CAT relief.
CONCLUSION
For the reasons set forth above, we grant Ahmed’s petition
for review.
PETITION GRANTED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent, as I cannot agree that the evidence in
this case compels a finding of persecution. See Lolong v. Gon-
zales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (requir-
ing affirmance of the BIA unless “the evidence not only
supports, but compels” reversal) (citation omitted). As we
have repeatedly held, persecution is an “extreme concept,”
characterized by “the infliction of suffering or harm upon
those who differ . . . in a way regarded as offensive.” Kohli
v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (citation
omitted). The facts of this case simply do not compel us to fit
Ahmed’s claims within that characterization.
The majority opinion cites three bases supporting its hold-
ing that a conclusion of persecution is compelled. The first is
the killing of Ahmed’s uncle and the beating of Ahmed and
his brother. The second is the punishment inflicted on Ahmed
as a result of his participation in unauthorized demonstrations.
The third is the disappearance of Ahmed’s brother following
an argument between the brother and members of an opposi-
tion group. I will explain why the majority’s reliance on these
bases is misplaced.
AHMED v. KEISLER 14065
1. The Killing of Ahmed’s Uncle
As the majority opinion recognizes, Majority Opinion, p.
14040, Ahmed’s uncle was suspected of collaborating with
Pakistan during the Bangladesh war for independence from
Pakistan. This fact itself militates against a compelled finding
of persecution. We have consistently held that confrontations,
even deadly ones, that occur in the course of civil war or
insurgency are, unfortunately, expected consequences of civil
conflict rather than persecution. See Miranda Alvarado v.
Gonzales, 449 F.3d 915, 931 (9th Cir. 2006), as amended
(“[I]njury inflicted by opposing political or other groups on
each other during a civil conflict will not necessarily equate
to persecution on account of one of the . . . protected
grounds.”); Ndom v. Ashcroft, 384 F.3d 743, 752-53 (9th Cir.
2004) (noting that “the existence of civil war . . . by itself,
does not establish eligibility for asylum . . .” and this court
has “found no persecution despite civil strife” when an appli-
cant fails to establish “that his or her persecutor was moti-
vated by one of the five statutory grounds”) (citations
omitted). Ahmed and his brother were beaten when they inter-
ceded on behalf of their uncle. Despite their good intentions,
they were unable to “save” their uncle from the soldiers.
However, Ahmed and his brother were beaten, not because of
their political views or their ethnicity, but because they inter-
fered with the soldier’s punishment of a suspected enemy col-
laborator. Although we might abhor the atrocities of war, that
abhorrence does not translate into a compelled finding of per-
secution. See Miranda Alvarado, 449 F.3d at 932 (citing with
approval language of a BIA decision holding that harm result-
ing “incidentally from behavior directed at another goal, the
overthrow of a government or, alternatively, the defense of
that government against an opponent, is not persecution”)
(citation omitted). The IJ’s conclusion that these events did
not rise to the level of persecution is supported by substantial
evidence as discussed above. See Ibarra-Flores v. Gonzales,
439 F.3d 614, 618 (9th Cir. 2006) (recognizing that we review
for substantial evidence, i.e., “such relevant evidence as a rea-
14066 AHMED v. KEISLER
sonable mind might accept as adequate to support a conclu-
sion.”) (citation omitted). The IJ’s finding is also bolstered by
the fact that for a period of 18 years — between 1972 and
1990 — Ahmed experienced no problems with the Bengali
military.
The majority opinion implicitly acknowledges the weak-
ness of Ahmed’s persecution claim where it states that “the
fact that Ahmed was beaten when captured with his uncle
suggests that the army imputed to Ahmed his uncle’s political
opinion.” Majority Opinion, p. 14053. However, more than a
suggestion is needed to countervene the Immigration Judge’s
(IJ) finding. Indeed, a suggestion falls far short of the compel-
ling evidence required to overturn the IJ’s finding. Lolong,
484 F.3d at 1178 (acknowledging that the evidence must com-
pel reversal).
2. Ahmed’s Participation in Demonstrations
As an initial matter, it should be noted that the majority
opinion’s description of the events in question as demonstra-
tions is somewhat euphemistic. In fact, Ahmed himself testi-
fied that the gatherings degenerated into riots, with stones
being thrown at police officers. The officers’ efforts to quell
these riots did not constitute persecution, but an attempt to
maintain the peace. See Fisher v. INS, 79 F.3d 955, 961-62
(9th Cir. 1996) (en banc) (holding that Iranian woman failed
to demonstrate a well-founded fear of persecution despite
multiple arrests for violating Islamic laws because, without
showing selective enforcement, “disproportionately severe
punishment” or “pretextual prosecution”, she had merely
established that she “face[d] a possibility of prosecution for
an act deemed criminal in Iranian society”) (citation omitted).
Adding to the fact that the gatherings became riotous was
Ahmed’s testimony that the protestors had been told that any
protests must be confined inside the camp rather than outside
the camp borders. When the protestors defied those orders and
AHMED v. KEISLER 14067
when Ahmed made the not-so-veiled threat that “if you don’t
give us the freedom to speak today [then] this very Bangla-
desh is going to become Pakistan again”, it is not surprising
that the police moved to restore order. That the police used
force in restoring order does not compel a finding of persecu-
tion.
3. The Disappearance of Ahmed’s Brother
The IJ’s finding that the disappearance of Ahmed’s brother
does not bolster his claim of persecution is supported by sub-
stantial evidence. Ahmed himself testified that his brother was
taken, not because of his political opinion, but because the
Awami League members “got angry [with his] brother and
they had an argument with him, not with the others.” This evi-
dence simply does not compel a finding that Ahmed’s brother
was taken away because of his political opinion.
When this case is considered under the deferential standard
we must apply, Ahmed’s petition fails to meet the require-
ments for asylum. See Gu v. Gonzales, 454 F.3d 1014, 1019
(9th Cir. 2006) (requiring a showing of persecution to be eli-
gible for asylum). That failure also dooms Ahmed’s request
for withholding of removal. See Fisher, 79 F.3d at 965 (hold-
ing that “failure to satisfy the lesser standard of proof required
to establish eligibility for asylum” necessarily results in fail-
ure “to demonstrate eligibility for withholding of deporta-
tion”) (citation omitted).
Because substantial evidence supports the IJ’s finding of no
persecution, I would deny Ahmed’s petition.